This opinion is subject to
editorial
correction before final publication.

Chief Judge GIERKE
delivered the
opinion of the Court.

The
lower court found excessive post-trial delay, but declined to grant
relief
because it determined that the delay did not prejudice Appellant and
that the
sentence was appropriate.Like the lower
court, we conclude that the unexplained post-trial delay in this case
was
unreasonably lengthy.The key issue
before this Court is whether the unreasonable post-trial delay
prejudiced
Appellant as a matter of law.Appellant’s own declaration and declarations from three
officials of a
potential employer indicate, with various degrees of certainty, that he
would
have been considered for employment or actually hired if he had
possessed a
discharge certificate (DD-214).We hold
that these unrebutted declarations were sufficient to demonstrate
prejudice.

I.
BACKGROUND

On
January 11, 2000,
in
accordance with Appellant’s pleas, a special court-martial found him
guilty of
two specifications of unauthorized absence and two specifications of
missing
movement by design, in violation of Articles 86 and 87 of the Uniform
Code of
Military Justice (UCMJ).1The military judge sentenced Appellant to a
bad-conduct discharge, confinement for 45 days, and reduction to pay
grade
E-1.As the lower court noted, Appellant’s “uncontested special court-martial
lasted just
55 minutes.”2

“Even
though the verbatim record of trial is
only 37 pages in length, it took over 6 months, until [July 17,] 2000,
for the
record to be transcribed, authenticated, and served on Appellant’s
trial
defense counsel.”3Another
sixty-six days would pass before the
staff judge advocate issued the Rule for Courts-Martial 1106
recommendation.That document was not
served on the defense counsel until October 2, 2000 -- 265 days after
the trial ended.Finally, on October
27, 2000
-- 290 days after trial -- the convening authority acted.In accordance with the pretrial
agreement, the convening authority suspended all confinement in excess
of
thirty days for a period of twelve months from the date of the
convening
authority’s action.

But
the convening authority’s action did not end the delay in this case.The Navy-Marine Corps Court did not receive
the record of trial until January 9, 2001 -- seventy-four days after the
convening authority acted and two days short of a year from the date of
trial.

In
October 2001, the Navy-Marine Corps Court
affirmed the findings and sentence in an unpublished opinion, rejecting
Appellant’s argument that he was entitled to relief based on the
unreasonably
lengthy post-trial delay.This Court
later set aside that decision and remanded the case for further
consideration
of the sentence’s appropriateness in light of United States v.
Tardif,4
which was decided after the lower court’s initial review of Appellant’s
case.In June 2003, the Navy-Marine
Corps Court again affirmed the findings and
sentence.5This
Court then granted Appellant’s petition for review6
and later specified an additional issue concerning whether the lower
court
erred by concluding that Appellant’s showing of prejudice arising from
the
post-trial delay was “too speculative.”7

Before the lower
court, Appellant submitted a declaration concerning his post-trial
activities,
as well as three declarations from officials of a potential employer.In May and June of 2000, Appellant completed
a course of study at a truck driver’s school and received a truck
driver’s
license.In July 2000 -- a bit more than
four months after he went on appellate
leave and
approximately six months after his court-martial -- Appellant applied
for a job
with U.S. Xpress Enterprises, a national trucking company.

A declaration from Mr.
Joseph Fuller, the director of U.S. Xpress’s Driver Services
Department, stated
that Appellant had applied for a position as a driver.Mr. Fuller explained that under company
policy, job applicants who were in the military must provide “a form
DD-214,
Proof of Discharge Certificate.Since
Anthony Jones was unable to provide such documentation, we were unable
to
complete a check of his employment background in order to process his
application.As such, he was not
considered for employment.”Mr. Fuller
was aware of Appellant’s court-martial conviction and pending
bad-conduct
discharge.Nevertheless, “Under our
current company policy, Anthony Jones would not have been excluded from
consideration for employment based solely upon the adverse discharge
from the
armed forces.Instead, our company would
evaluate the underlying conduct that led to the offenses.”Mr. Fuller observed that “given the uniquely
military offenses committed by Anthony Jones and, assuming that he was
otherwise qualified, he would have been seriously considered for
employment
during the summer of 2000 had he possessed a DD-214.”Appellant also presented a declaration from
Ms. Afton Yazzie, an Assistant Instructor with U.S. Xpress.She stated that Appellant participated in a
company orientation program in July 2000.He was invited “to attend the orientation based upon his initial
application and qualifications.Persons
attending the company orientation are generally hired upon successful
completion as they are pre-screened to ensure that they have the proper
licensing and background requirements.”But Appellant’s “employment application had been flagged as he
was
missing required proof of past employment.”Ms. Yazzie’s declaration stated that “[d]uesolely
to his inability to meet this
requirement, he was told that he could not complete orientation and a
decision
on his employment with U.S. Xpress was deferred until he could provide
a
DD-214.”She also explained that
Appellant applied again later in 2000 and twice in 2001, but each time
“the
decision was made that his lack of a DD-214 prevented his employment.”The final declaration was from Ms. Brenda
Cole, an orientation instructor with U.S. Xpress.Ms.
Cole’s declaration was the most certain
of the three.She specifically stated,
“I can personally attest that had Anthony Jones provided a DD-214 in
July 2000,
he would have been hired as a truck driver with U.S. Xpress at the
conclusion
of the orientation program.”She also
recounted that as Appellant “was leaving the orientation, one of our
recruiters
told him to reapply for employment once he received his DD-214 and he
would be
hired.”

A position with U.S.
Xpress would have produced an average salary of $3,500 to $4,000 per
month, in
addition to substantial employee benefits.When Appellant did not obtain a position with U.S. Xpress, he
obtained
alternative employment as a delivery truck driver earning about $7 to
$10 per
hour working part-time or through temporary agencies.

The Government
presented no information to rebut any of these declarations.

The Navy-Marine Corps Court found that the post-trial delay in
this case was “excessive.”8As that court
explained, “Each of the various
processing steps took weeks or months to accomplish [what] we would
reasonably
expect a command to accomplish in days or weeks.”9The lower
court also emphasized its
displeasure with “the 11 weeks it took to mail the record” to that
court.10

Given
this finding of unexplained excessive
post-trial delay, the central legal issue then became whether the delay
had
prejudiced Appellant.The Navy-Marine Corps Court held that it did
not.The court concluded that “the
degree of prejudice is simply too speculative to convince us that
Appellant is
entitled to relief.”11The court
reasoned that “[v]irtually
all persons whose court-martial sentence includes a bad-conduct
discharge who
do not waive appellate review of their case live for a lengthy
period in
civilian life without possession of the DD[-]
214.”12While stating
that “this is a close case,”
the court reiterated that “Appellant has not demonstrated that he is
entitled
to relief, either under Article 59(a), UCMJ, or Article 66(c), UCMJ.”13

II.
DISCUSSION

Appellant’s trial lasted fifty-five minutes
and resulted in a thirty-seven-page record of trial.Yet 363 days elapsed before the record was
docketed with the Navy-Marine
Corps Court.The Navy-Marine
Corps Court found that
this unexplained delay
was excessive.We similarly conclude
that the unexplained post-trial delay was facially unreasonable.This conclusion serves as a trigger for a more
extensive due process review.

United States v. Tardif14 discussed the Courts of
Criminal
Appeals’ authority to address unreasonable and unexplained post-trial
delay
under their Article 66 authority to ensure an “appropriate sentence.”Toohey v. United States15 discussed an appellant’s
constitutional due process right to a speedy post-trial review, a right
separate and distinct from the “sentence appropriateness” review under
Article
66.Our review of this case deals solely
with the Toohey constitutional due process review.

Determining
whether post-trial delay violates an
appellant’s due process rights turns on four factors:(1) the length of the delay; (2) the reasons
for the delay, (3) the appellant’s assertion of the right to a timely
appeal;
and (4) prejudice to the appellant.16As we have explained, the “length of delay” factor serves two
functions:“First, the length of delay
is to some extent a triggering mechanism, and unless there is a period
of delay
that appears, on its face, to be unreasonable under the circumstances,
there is
no necessity for inquiry into the other factors that go into the
balance.”17Second, “if the
constitutional inquiry has been triggered, the length of delay is
itself
balanced with the other factors and may, in extreme circumstances, give
rise to
a strong presumption of evidentiary prejudice affecting the fourth Barker
factor.”18Because we conclude that the post-trial delay in this case was
facially
unreasonable, we will analyze the remaining three factors.

The Government has
offered no justification for the appellate delay in this case, and the
record
fails to disclose any.

The
record also reflects that Appellant
complained about the delay in post-trial processing.The lower court found that, “on two or more
occasions,” Appellant “contacted a junior member at his unit, explained
the
problems that he was having in obtaining employment because of the
delay in
obtaining his DD-214, and made clear his desire to move the process
along more
rapidly.”19The lower
court also noted that the record
“contains a series of letters and faxes documenting Appellant’s
subsequent
efforts to engage the Marine Corps, his U.S. Senator, and his appellate
defense
counsel in expediting the processing of his case.”20In
our view, the most critical issue in this case is whether the
excessive post-trial delay prejudiced Appellant.21Unlike the lower court,
we conclude that it did.

Whether Appellant has
established prejudice is a legal question subject to de novo review.22We
have often recognized interference with post-military employment
opportunities
as a form of prejudice that warrants relief for unreasonable post-trial
delay.23The record indicates that as a result of the unreasonable
post-trial delay, Appellant has suffered this form of prejudice.

Ms. Cole’s
declaration affirmatively stated
that, based on her personal knowledge, Appellant would have been hired
by U.S.
Xpress if only he had a DD-214.If that
were the only document that Appellant had submitted, it would seem
unquestionable that he has established that the unreasonable post-trial
delay
prejudiced him.But, in addition to his
own declaration, Appellant submitted two more declarations from U.S.
Xpress
officials.One of these, executed by the
director of the Driver
Services Department, stated
that had Appellant had his
DD-214, he would merely “have been seriously considered for employment.”The
Government argues that Appellant was not prejudiced by the excessive
delay in
this case.At oral argument, the
Government observed that the commercial driver’s license that Appellant
presented in support of his prejudice claim was issued in October 2000,
several
months after U.S. Xpress considered him for a position.The Government also observes that Appellant
applied for a position with U.S. Xpress approximately six months after
his
court-martial ended.Even if the
post-trial review had been handled with utmost speed, the case would
certainly
have remained on appellate review at that point and Appellant would not
have
had his DD-214.

We
conclude, however, that Appellant has
demonstrated on-going prejudice.His
declaration -- which the Government has never rebutted -- indicated
that U.S.
Xpress officials told Appellant that he should contact them again once
he
received his DD-214.Ms. Yazzie’s
declaration indicated that Appellant reapplied to U.S. Xpress in the
fall of
2000, January 2001, and May 2001.Ms.
Yazzie also indicated that Appellant “was, and still is to my
knowledge,
invited to apply again once he obtains a DD-214.”So
Appellant’s ability to have his employment
application considered by U.S. Xpress was prejudiced after he obtained
the
commercial driver’s license attached to his declaration24 and after he
likely would have received a DD-214 if only his post-trial review had
been
completed within a reasonable time.

No
speculation is necessary to conclude
that the unrebutted declarations establish that the unreasonable
post-trial
delay prejudiced Appellant.Nor do the
declarations conflict on this point:all
four agree that Appellant would have been considered for a
position with
U.S. Xpress if he had his DD-214.The
issue in this case is whether Appellant was prejudiced by the
unreasonably
lengthy delay, not whether he had a guaranteed offer of employment.In America,
there are employers willing to give a second chance to ex-convicts,
whether
civilian or military, who have paid their debt to society.In this case, the delay prejudiced Appellant’s opportunity for a
second chance.We hold that such interference with the opportunity to be
considered for
employment constitutes prejudice for purposes of the fourth due process
factor
listed above.

Despite
the four unrebutted declarations
Appellant has submitted to demonstrate prejudice, the dissent engages
in
unsupported supposition to reject their import.The simple answer to the dissent’s speculation is that the
Government
had an opportunity to rebut the declarations but did not do so.Three of the four declarations at issue were
executed by officials of U.S. Xpress, who have no apparent connection
to either
party in this case.If, as the dissent
supposes, U.S. Xpress would not have offered Appellant a position if
its hiring
officials were aware of the extent of his unauthorized absences, then
the
Government could have obtained and submitted to the lower court
evidence
demonstrating that point.The Government
did not.Rather, the Government provided
no counterevidence to the lower court either before or after that court
attached the four declarations to the record.It is, therefore, appropriate to
accept the
content of the unrebutted declarations, rather than guessing as to what
the
declarants would have said if they hypothetically had access to the
information
that the dissent discusses.This is
consistent with our well-established approach to supplementing the
factual
record with affidavits while the case is on appeal:“if the affidavit is factually adequate on
its face to state a claim of legal error and the Government either does
not
contest the relevant facts or offers an affidavit that expressly agrees
with
those facts, the court can proceed to decide the legal issue on the
basis of
those uncontroverted facts.”25This is such
a case.By considering these unrebutted
declarations,
which were already attached to the record by order of the lower court,
we are
not engaging in fact-finding.Rather, we
are applying the law to unrebutted facts contained within the record,
which is
a standard role of an appellate court.26We also disagree with
the dissent’s
suggestion that in lieu of presenting a DD-214, Appellant could have
satisfied
his potential employer by providing an affidavit from his defense
counsel
explaining his status or a copy of his record of trial.Mr. Fuller’s declaration indicates that it
was the lack of the form itself –- and not the absence of information
from that
form –- that disqualified Appellant as a prospective employee.Some employers’ insistence that veterans
applying for jobs present a DD-214 is understandable.They may be reluctant to devote time and
money to train a prospective employee without documentation
demonstrating that
the individual is no longer on active duty.But regardless of whether Appellant’s potential employer should
have required a DD-214 as a condition of employment, it appears that
the
potential employer did.The
unreasonable post-trial delay in this case prevented Appellant from
satisfying
that requirement.

We
therefore conclude that Appellant was
prejudiced by the facially unreasonable post-trial delay.Balancing the four factors, we hold that the
post-trial delay violated Appellant’s due process rights.The same evidence that supports the due process
test’s prejudice factor also demonstrates prejudice for purposes of
Article
59(a), UCMJ.27Accordingly,
Appellant is entitled to relief.

III.
REMEDY

Because
this case involves a finding of
legal error accompanied by Article 59(a) prejudice, we may order a
remedy
ourselves rather than remanding the case for that purpose.We consider ordering relief ourselves to be
particularly appropriate to bring a close to the overly prolonged
post-trial
proceedings in this case.Formulating
such a remedy is an exercise of authority under Article 59(a) to
eliminate
material prejudice to Appellant’s due process rights; it is entirely
distinct
from the Court of Criminal Appeals’ Article 66(c) sentence
appropriateness
powers.

In
Tardif, we considered whether a court that
finds unexplained
and unreasonable post-trial delay can grant relief “short of dismissal
of the
charges.”28We noted that Dunlap v. Convening Authority29 adopted a universal remedy for unreasonable post-trial
delay:dismissal of the charges and
specifications.But in Tardif, we
also recognized
criticisms of “the draconian
remedy required by Dunlap
and its progeny.”30We cited with approval
the pre-Dunlap rule that “denial
of the right to
speedy trial resulted in dismissal of the charges only if reversible
trial
errors occurred and it was impossible to cure those errors at a
rehearing
because of the excessive post-trial delay.”31

In Tardif, we
noted that “appellate courts
are not limited to either tolerating
the intolerable or giving an appellant a windfall.”32Rather, in cases
involving unreasonable post-trial delay, courts should “tailor an
appropriate
remedy, if any is warranted, to the circumstances of the case.”33

In
this case, an appropriate remedy is to disapprove the bad-conduct
discharge.Appellant pleaded guilty, and
nothing that has occurred since trial has suggested that the findings
are not
accurate.Setting aside the findings
would be a windfall for Appellant.

Setting aside the
bad-conduct
discharge is a remedy more proportionate to the prejudice that the
unreasonable
post-trial delay has caused.The
post-trial delay has had an adverse effect on Appellant’s ability to
find
employment.Removing the bad-conduct
discharge’s adverse effect on Appellant’s employment opportunities may
help to
restore him to the position he would have been in had the post-trial
review
been accomplished with reasonable speed.

IV.
DECISION

The portion of the United
States Navy-Marine Corps Court of Criminal Appeals’ decision affirming
the
bad-conduct discharge is reversed.The
bad-conduct discharge is set aside.The
remainder of the Navy-Marine Corps Court of Criminal Appeals’ decision,
which
affirmed the findings and confinement for forty-five days (as partially
suspended by the convening authority) and reduction to pay-grade E-1,
is
affirmed.

28Tardif, 57 M.J.
at 224.We
cite Tardif only for its discussion of the appropriate remedy
for
unreasonable post-trial delay.Id.
at 224-25.The bases of our ruling
are the Fifth Amendment’s Due Process Clause and Article 59(a).

The
majority
converts the dicta in United States v. Shely, 16 M.J. 431, 433
(C.M.A. 1983),
to a holding in this case.Cf.United
States v. Williams, 55 M.J. 302, 305 (C.A.A.F. 2001).But seeUnited States v. Hudson,
46 M.J. 226, 227 (C.A.A.F. 1997)(“The legal
standard
applicable to such delay is demonstration by appellant of some real
harm or
legal prejudice as a result of the delay.”)(citingUnited
States v. Jenkins, 38 M.J. 287 (C.M.A. 1993)); Shely, 16
M.J. 431; Jenkins,
38 M.J. at 288 (“An appellant seeking such relief must demonstrate some
real
harm or legal prejudice flowing from that delay.”) (citingShely).We are moving farther and
farther away from the mainstream judicial standard of requiring a
showing of
actual prejudice to a substantial right of the accused.Speculative prejudice appears to be
sufficient for the majority to grant relief.Accordingly, I respectfully dissent.

In
concluding that
Appellant has suffered prejudice, the majority disregards not only our
precedent requiring a showing of actual prejudice, United States v.
Jenkins,
but also common sense.None of the
affiants
had full knowledge of Appellant’s military record when they executed
their
affidavits.Nor do those affidavits --
read separately or together -- raise more than a mere inference that
Appellant
would have been employed but for the absence of a DD Form 214.1

There
are three
carefully crafted affidavits in this case from:Ms. Brenda Cole (an orientation instructor), Mr. Joseph Fuller
(director, Driver Services Department), and Ms. Afton Yazzie (an
assistant
orientation instructor).No affiant claims
to have had hiring authority and only Mr. Fuller acknowledges
Appellant’s
pending bad-conduct discharge.Ms. Cole,
who claims no connection to the hiring process, sagely swears “that had
Anthony
Jones provided a DD [Form] 214 in July 2000, he would have been hired
as a
truck driver with U.S. Xpress at the conclusion of the orientation
program.”
(Emphasis added.)Ms. Yazzie -- also
unconnected to the hiring decision and claiming no source of knowledge
other
than Appellant -- avers, in various ways, that the absence of a DD Form
214
prevented a hiring decision in Appellant’s case.Mr. Fuller, whose job title implies hiring
authority, avers only that “given the uniquely military offenses
committed by
Anthony Jones and, assuming that he was otherwise qualified, he
would have
been seriously considered for employment during the summer of 2000
had he
possessed a DD [Form] 214.”(Emphasis
added.)

The
common ground
shared by these affidavits is not an unqualified statement that
Appellant would
have been hired as a truck driver had he possessed a DD Form 214.What these affidavits share is a carefully
woven series of exceptions, exclusions, and restrictions wide enough
through
which to drive a truck.Regarding in
particular the statement of Mr. Fuller -- the one affiant who even
implies
having hiring authority – one need look no further than the plain words
of the
affidavit to discern its true character.The phrases “Anthony Jones would not have been excluded from
consideration
for employment based solely upon the adverse discharge” and “assuming
that he
was otherwise qualified, he would have been seriously considered for
employment” were likely crafted less to suggest the legal prejudice
required by
this Court, and more to negate any inference of factual prejudice that
might
potentially be alleged by Appellant in a civil court.

There
is simply no
indication in any of these documents that any of these individuals was
aware of
Appellant’s repeated absences from work, his service record, or his
financial
difficulties.Far from suggesting that
the Government “interfered” with Appellant’s employment opportunities,
everything we are asked to consider compels a conclusion that Appellant
concealed his absences, service record, and financial difficulties to
secure even
the shrewdly worded affidavits he offers this Court.In that regard, Mr. Fuller’s reference to
Appellant’s “uniquely military offenses” sheds welcome light on the
characterization Appellant may have lent his past, absent documentation
to the
contrary.Mr. Fuller noted that
Appellant was “unable to provide such documentation . . . [as to] his
employment background in order to process his application.”Since Appellant’s military record
would
contain all of his absences -- not just the absences to which he
pleaded guilty
-- it is not difficult to understand why Appellant failed to disclose
his
personnel records, or his record of trial, or seek an alternative to
the DD
Form 214.

Although
the
majority accurately quotes Mr. Fuller’s affidavit in the background
section of
the lead opinion, I cannot agree with the majority’s
later, implicit, factual determination that Mr. Fuller’s qualifying
phrase,
“assuming that he was otherwise qualified” is entitled to no weight in
evaluating whether Appellant “would have been seriously considered for
employment.”Not surprisingly, the
factual finding of prejudice collapses when you consider the statement,
”assuming he was otherwise qualified,” and Mr. Fuller’s guarded
inclusion of
that qualifying phrase compellingly invites the conclusion of no error.

The
majority
cannot engage in factual findings.As we
recently explained, “[i]n Ginn, we announced . . . six
principles to be
applied by the courts of criminal appeals in disposing of post-trial,
collateral, affidavit-based claims, such as ineffective assistance of
counsel.
. . .”United States v. Singleton, 60 M.J. 409, 410 (C.A.A.F. 2005).This explanation correctly limits the scope
of Ginn to the “courts of criminal appeals,” and, offers no
support to
the proposition that this Court may exercise fact-finding power when
examining
these post-trial affidavits.When
“applying the law to unrebutted facts” “already attached to the record
by order
of the lower court,” __ M.J. (14), I prefer first, to consider
authorities pertinent to criminal proceedings,2
second, to
distinguish the “record of trial”3 from
the appellate
record, and third, to ensure that fact is distinguished from opinion.In this latter regard, when post-trial
affidavits contain statements riddled with exceptions and
qualifications, I do
not question the Government’s decision not to rebut them -- such
statements
speak for themselves.What I believe we
cannot do is depart from Article 67, Uniform Code of Military Justice,
10
U.S.C. § 867 (2000), to “fill in the gaps” in those affidavits by use
of
selective quotation or otherwise.If
there is fact-finding to be done, we must, as a matter of law, leave
that to
the lower courts.To the extent that I
have propounded conclusions or scenarios inconsistent with those
offered by the
majority, I have done so only to emphasize that the plain, unredacted
words of
the affidavits, including the artfully placed qualifications and
exceptions,
are logically suggestive of factual conclusions other than those
accepted by the
majority as “unrebutted facts.”As such,
they comprise, at best, grounds for a hearing pursuant to United
States v.
DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967).

At
the very least,
if there is a factual issue, this case should be remanded to the court
of criminal
appeals, which has the power to analyze affidavits and if, as the
majority
indicates, further evidence is needed, such
evidence
could be gathered by the parties and submitted to a court that has
fact-finding
authority.

The DD Form 214 is a one-page document that
would show Appellant’s punitive discharge, his schooling, his time in
service,
etc., as well as his “bad time.”The
record clearly shows that Appellant’s record is anything but stellar as
to
being present for work.Appellant was
charged with six specifications of being absent from his place of work
without
proper authority during the following periods of time:

April 16-20, 1999
(Friday-Tuesday);

May 5-11, 1999
(Wednesday-Tuesday);

June 15, 1999
(Tuesday);

July 29-30, 1999
(Thursday-Friday);

September 14-15, 1999
(Tuesday-Wednesday); and

September 23-27, 1999
(Thursday-Monday).

In
addition,
Appellant intentionally missed the overseas movements of his battalion
on the
USS Peleliu on April 19 and May
7, 1999.Pursuant to an offer
to plead guilty, the Government withdrew four of the six specifications
alleging Appellant’s absence from his place of duty.Furthermore, the record demonstrates that
Appellant had exhibited poor financial management by having written a
number of
bad checks.

Rather
than the
bare-bones DD Form 214, Appellant was in possession of the record of
trial,
which would have provided the background for these offensesand his military record.There is no indication that Appellant sought the assistance of
defense
counsel for an affidavit explaining his status, sought assistance from
the
convening authority, or gave the potential employer a copy of his
record of
trial, which contained his service records from which the DD Form 214
is
completed.It does not take much common
sense to explain why Appellant did not implement any of these steps to
disclose
fully and accurately his military record to U.S. Xpress.Does anyone reasonably believe that the
hiring manager for U.S. Xpress would look favorably upon an
employment/military
record such as Appellant’s?

Common
sense
compels me to conclude that an individual absent from work as much as
Appellant
would not be a truck driver with this firm.That same common sense should tell this Court that an employer
seeking a
dependable and financially responsible employee would not look
favorably upon
Appellant’s military record, with or without a DD Form 214. If
the employer had full knowledge of Appellant’s military record -- the
disclosure of which was under Appellant’s control -- and was still
willing to
aver that Appellant would have been hired but for the lack of a DD Form
214,
then I would agree that Appellant had met his burden of demonstrating
actual
prejudice.However, that is clearly not
the case here.Any “prejudice”
was manufactured by Appellant’s own
inaction in failing to give his prospective employer all the
information
Appellant possessed. Appellant has failed to meet his burden to
demonstrate
that the hiring authority at U.S. Xpress, with full knowledge of
Appellant’s
military record, would have hired him but for the lack of a DD Form 214.Thus, I agree with the court below that
Appellant’s claim of prejudice is too speculative and that he has “not
demonstrated the necessary prejudice to entitle him to relief for the
unreasonable and unexplained post-trial delay . . . in the processing
of his
record of trial.”United
States v. Jones, No.NMCM 200100066,
2003 CCA
LEXIS 155, at *2, 2003 WL 21785470, at 1 (N-M.Ct.
Crim. App. June 19, 2003).

“This
Court has long recognized” the right to a speedy post-trial review of
the
findings and sentence at a court-martial.Diaz v. Judge Advocate General of the Navy,
59
M.J. 34, 37 (C.A.A.F. 2003).We
also recognize the “constitutional right to a timely review guaranteed
. . .
under the Due Process Clause.”Id. at
38.The Supreme Court has not
faced the question of whether the United States Constitution guarantees
a
speedy criminal appeal, but the federal courts have held that there is
such a
right.However, absent a showing of
actual prejudice, they have not granted relief.See, e.g., Elock v. Henderson, 28 F.3d 276, 279
(2d Cir.
1994)(finding no violation of due process in an eight-year delay
between
conviction and appeal because there was no actual prejudice); Heiser
v. Ryan,
15 F.3d 299, 303-04 (3d Cir. 1994)(refusing to grant relief due to
failure to
show prejudice after a thirteen-year delay between conviction and
appeal); United
States v. Mohawk, 20 F.3d 1480, 1485-88 (9th Cir. 1994)(finding no
prejudice in a ten-year delay).In Jenkins,
we held that an appellant “seeking . . . relief (from a post-trial
delay) must
demonstrate some real harm or legal prejudice flowing from that delay.”38 M.J. at 288.In support of this proposition, the Court, in
a unanimous per curiam decision, cited Shely, 16 M.J. 431.The burden rests on Appellant to show
prejudice.United
States v. Hudson,
46 M.J. at 227.Appellant cannot spoil the evidence by withholding information
from a
potential employer and still claim prejudice.

A servicemember normally
does not receive a DD Form 214 until he or she has exhausted his or her
appellate remedies.Thus, most of the
appellants before this Court do not yet have a DD Form 214, and would
have no
reason to expect to have one before their appeals are complete.If we permit relief on the ground that this
appellant did not have a DD Form 214, the same rationale will apply to
hundreds
of cases on appellate review where there has been an imposition of a
punitive
separation.At the very least, given the
critical nature of the information known to Appellant and contained in
the
record of trial, one would expect that a DuBay hearing would be
a
prerequisite to relief, at which Appellant would be required to
demonstrate
that, in light of all pertinent information, he would have been hired
but for
the absence of a DD Form 214.

Thus,
I
respectfully dissent.Appellant has not
met his burden to show actual prejudice and has failed to take
reasonable
action to resolve his own problems.Further, a finding of prejudice would open the door to similarly
weak
and speculative claims from many appellants before this Court.